1. The Report A/HRC/22/38 refers on several instances to the United Nations Secretary General‟s Panel of Experts Report (hereafter called the PoE Report) on Sri Lanka. The Government of Sri Lanka (GoSL) would like to request the OHCHR to delete all references to the PoE Report for the following reasons
(a) The PoE was not referred to
in the resolution 19/2 on promoting reconciliation in Sri Lanka, and therefore allusion
to it in the Report A/HRC/22/38 takes the Report beyond the scope and mandate
of the resolution 19/2.
(b) The PoE Report on Sri Lanka
which was commissioned by the UN Secretary General was the culmination of a
private consultation that the latter sought to advise himself on, and is not
the product or a request of the UN Human Rights Council, the UN General
Assembly or any other UN body. As it has not received the endorsement of the
intergovernmental process, it has neither credence nor legitimacy within an intergovernmental
fora. The PoE‟s mandate did not extend to fact finding or investigation. In its
Report, the three-member Panel also makes it clear that the assertions set out
therein remain unsubstantiated and require a higher standard of proof. For
these reasons, the GoSL does not extend any credence or legitimacy to the PoE
Report.
2. The 6 specific references to
the PoE Report are given below:
(i) Paragraph 2 of the
Report notes „While the Secretary-General has offered the PoE as a resource
to the Government and particularly to the LLRC, the PoE had very limited
engagement with the Government and did not meet with the LLRC.‟ – This is a
misrepresentation of what actually transpired, which is that the Panel of
Experts were invited to make representation before the LLRC, whereas the Panel,
for reasons best known to them, did not present themselves before the LLRC for
this purpose. If all allusions to the PoE in the Report are not deleted as
requested above, the GoSL would request that this paragraph be suitably amended
to accurately reflect reality bringing in reference to the fact that the PoE
was invited to make representation before the LLRC, but did not do so.
(ii) Footnote 1 contains
extensive reference to the PoE Report. If this footnote is not deleted, the
GoSL would request that this be qualified with reference to the GoSL position
on the PoE as reflected under Item (b) above.
(iii) Footnote 5 refers
to the PoE Report in reference to Paragraph 10 „concerns regarding its [LLRC‟s]
mandate, composition and methodology‟. The GoSL requests that this
reference to the PoE be deleted, given that the PoE is a document which lacks
credence and legitimacy, as elaborated above.
(iv) Paragraph 26 and corresponding
footnote 32 make reference to the PoE. Paragraph 26 states, „Noting this
Act [Registration of Deaths (Temporary Provisions) Act A/HRC/22/38/Add.1
No 19 of 2010), the PoE however stated that „‟issuance of a
death certificate following an administrative process is not a substitute for a
bona fide investigation into the circumstances of an individual‟s death, which
meets international standards. …. any further legal recourse in the future‟‟‟.
The GoSL requests that this reference and corresponding footnote be deleted.
(v) Footnote
49 refers to the PoE in relation to the study of cases of LTTE suspects in
detention. The GoSL requests that this reference to the PoE be deleted.
(vi) Footnote
50 quotes a PoE reference to the rehabilitation of ex-combatants. The GoSL
requests that this reference to the PoE be deleted.
Meetings in
Sri Lanka by the OHCHR
Technical Mission
3. Paragraph
7 of the Report has omitted reference to the meeting between the OHCHR
technical Mission
led by Mr. Hanny Megally and Hon. Mahinda Samarasinghe, Minister of Plantation
Industries and Special Envoy of the President on Human Rights. It would be
appreciated if this section is updated and amended accordingly.
Reference
to the Response dated 17th December 2012 by the Minister of External Affairs of
Sri Lanka
4. Paragraph
7 of last sentence refers to the letter by the High Commissioner for
Human Rights dated 26th
November 2012
addressed to the Minister of External Affairs of Sri Lanka. However, the Report at this instance
does not mention that the High Commissioner‟s letter was responded to by the
Minister of External Affairs of Sri Lanka Hon. Prof. G.L. Peiris by his letter
of 17th December 2012 addressed to the High
Commissioner, even though we note that reference to the letter by Hon. Prof.
Peiris is made in Paragraph 61 of the Report. We therefore request that the
response by the Minister of External Affairs be referred to in Paragraph 7 as
well, in order to accurately reflect the course of events.
Reference
to Rule of Law and Administration of Justice
5. The content
of paragraph 15 expresses an unfounded fear in relation to the exercise
of powers vested under Section 12 Part III of the Public Security (Amendment)
Act, which empowers the members of the Armed forces to act within a limited
scope to maintain public order. According to Section 20 of the Act, immediate
steps should be taken to hand over any person arrested to the police
authorities to deal with the said person under the provisions of the Criminal
Procedure Code. Orders under Section 12 are issued based on objective criteria.
The evaluation and assessment of the need to issue these orders are based on
the recommendations of the State intelligence services which shall take all
objective focus in making appropriate recommendations for the invoking of the
powers under Section 12 of the Act.
Reference
to Allegations of Extrajudicial Killings
6. Paragraphs
17 & 18 - Taking cognizance of the LLRC Report, the Commander of the
Army appointed a Court of Inquiry to investigate the instances of civilian
casualties that are mentioned in the LLRC Report and also to investigate the
Channel 4 allegation. The Commander of the Army‟s direction to the Court of
Inquiry was to investigate the alleged scenes of summary executions that are
shown in the Channel 4 video footages irrespective of the fact whether the
video footages are authentic or not. A/HRC/22/38/Add.1
7. The Court of Inquiry decided to investigate “civilian
casualties allegation” first. With regard this inquiry to date 50 witnesses
have been examined by the Court of Inquiry. These witnesses were examined on
alleged incidents of shelling that are mentioned in the LLRC Report. The Court
has to investigate more than 50 incidents mentioned in the LLRC Report that are
alleged to have occurred at different localities, extending from the West Coast
to the East Coast of Northern Sri Lanka, at different dates and times. The
inquiry requires the identification of the Artillery Regiments, Formations and
Infantry Battalions that are relevant to the incidents alleged and the
examination of the commanders concerned. Such an inquiry is naturally time
consuming. The inquiry will be concluded shortly, by mid January 2013.
8. As
regards an independent investigation into the Channel 4 Video to establish the
truth or otherwise of the allegations arising from the video footage, the
Court of Inquiry aforesaid has been tasked to investigate this matter. Once the
1st part of the investigation is over,
the court will investigate the channel 4 allegations.
Reference
to the Vavuniya Prison Riot in Paragraph 21
9. Paragraph
21 - Excessive force had not been used in either of the incidents described
in the paragraph. The Prison and Law Enforcement Officials have acted within
the legal framework in responding to the situation that prevailed. Police
Investigations into the two cases are currently in progress.
Reference
to Missing Persons and Enforced Disappearances
10. Paragraph
22 - The Government of Sri Lanka has on numerous occasions provided
information to the UN Human Rights Council on the process adopted with regard
to disappearances. An Inter-Ministerial Working Group to verify cases on
alleged disappearances has been established to address cases brought to the
attention by the WGEID. In addition, any reported incident of disappearance to
the Police is duly investigated and information on such cases was provided in
the National Report of Sri Lanka to the UPR 2012.
11. The
Government has taken measures to investigate all reported cases of alleged
disappearances including those related to the last phase of the conflict.
12. The
Government of Sri Lanka
continues to clear the backlog of cases brought to its attention by the WGEID
and has provided responses to 159 cases in the last two years. Further,
investigations are being conducted on remaining allegations. In addition to the
Inter Ministerial Working Group, a Working Committee has been appointed headed
by a Deputy Inspector General to conduct ground verifications to ascertain
present facts.
13. Paragraph
24 - Despite the non-inclusion of the LLRC recommendation related to cooperation
with the ICRC on disappearances, the Ministry of Defence and the ICRC have held
a series of discussions on the issue of the disappeared persons and continues
to maintain a positive dialogue on possible areas of cooperation. The Ministry
of Defence has also shared certain information with the ICRC and continues to
work closely on cases of disappearances. Collaboration has included studying
practical methodologies adopted by other countries in dealing with cases of
alleged disappearances in cooperation with ICRC.
14. It may be
noted that although the Family Tracing and Reunification Unit (FTR) established
in collaboration with UNICEF which was primarily to trace missing children
recorded 2,564 untraceable persons out of which 676 were children while 1,888
were adults. Nearly 75% of the tracing request received by the unit are related
to adults. It is to A/HRC/22/38/Add.1
be noted that 64% tracing requests were reported by parents
as having been recruited by the LTTE.
15. Paragraph
25 - The Ministry of Defence has created a data base based on WGEID data
and is in the process of cross checking information available with other
institutions in order to establish centralized data base.
16. Therefore
the assertions made in the report in paragraphs 22, 24, and 25 that no
mechanism has been established to trace the adults gone missing during the last
stage of war is inaccurate.
17. Paragraph
29 - The Government has already provided responses to 159 cases referred by
the WGEID. In addition another 5 urgent cases and 100 cases referred by the
WGEID have been processed and will be communicated to the WGEID as soon as
possible.
18. The
generalization made highlighting a few isolated incidents as a spike in reports
of abductions and disappearance in the period last quarter of 2011 to mid 2012
is inaccurate. As a case in point, categorizing the case of a “diplomat‟s
child” is erroneous. Investigations have revealed that this case cannot be
categorized as either an enforced disappearance or abduction and the incident
appears to be of a personal nature and the child has not been forthcoming in
revealing the truth.
19. All other
cases referred to in the report are under investigation by the Law Enforcement
Agencies.
20. Therefore
the assertions made in the report indicating that spike of activities in the
period last quarter of 2011 to mid 2012 is inaccurate.
Reference
to Detention Policies
21. Paragraph
31 - The need to strictly adhere to the existing powers under the law to
arrest or detain a person has been emphasized by the Supreme Court of Sri Lanka
since its inception and any breach of such provisions would attract the
infringement of the Fundamental Right enshrined in Article 13 of the
Constitution of Sri Lanka. Under the Prison Ordinance as well as any other
written law dealing with detention of persons, no place of detention can be
maintained without duly publishing it in a Government Gazette that could be
accessed by any member of the public. It has always been considered as
illegal to maintain places of detention without properly gazetting such places
and giving publicity to them. In the circumstances it would be superfluous
to make as new recommendation to include this requirement in to the catalogue
of new measures to be adopted though NPOA.
22. Paragraph
32 - A centralized, comprehensive database of detainees has been
established at the Terrorist Investigation Division of the Police. This is
a round the clock mechanism with units in Colombo,
Vavuniya and Boossa where the details of detainees and those who are released
from detention can be obtained by the NoK. It may be noted that this
information is only provided to NoK as detainees have requested that such
information not be released publicly due to the privacy concerns. There have
been no reported instances of hostile or uncooperative behavior of State
Officials towards family members who sought assistance at detention centers.
Despite the assertion of hostile or uncooperative treatment, 3,073 NoKs have
accessed the above units and sought the assistance.
23. Paragraph
35 - The rehabilitation process undertaken by the Government has been
completely transparent and was supported by international agencies including
UNICEF and IOM. The main criterion for rehabilitation to be undertaken was
decided on the extent of involvement with the LTTE. Due to the Government‟s
deep and abiding commitment to the A/HRC/22/38/Add.1
reconciliation and peace, a vast majority of cadres have been
rehabilitated and reintegrated into the society, despite their involvement with
the LTTE activities.
24. Therefore
the assertions made in the report indicating that a criterion for rehabilitation
has not been transparent is unfounded.
25. Paragraph
36 - The characterization of the legitimate rehabilitation process
undertaken by the Government, as “a rehabilitation regime against alleged LTTE
sympathizes” is inaccurate. At no time has the rehabilitation process been
used against ex- combatants or LTTE sympathizes but have been used for their
benefit and to ensure speedy reintegration into society. Despite the sufficient
evidence to take legal action on these individuals, as a part of reconciliation
process, the Government chose the option of rehabilitation.
26. The same
procedure was adopted with regard to the 4 students from Jaffna University who
were arrested on charges of involvement in organising, canvassing for and
actively taking part in an event of the LTTE which is a banned terrorist
organisation in Sri Lanka; amounting to involvement in an unlawful activity
under the Prevention of Terrorism Act (PTA). Two(2) of these students have
already been released on 22 January 2013 and other 2 will be released in due
course.
27. Paragraph
37 - There is no process in place or requirement for reintegrated ex-
combatants to register regularly either with local civil affairs offices of the
military or the local Army camps. Furthermore, military and intelligence
agencies do not undertake visits to homes or workplaces of those who have been
released for interrogation purposes. The claim that women are subjected to
stigma following contact with the military is without basis.
28. Therefore,
the content of the report on these matters are inaccurate.
Reference
to Internal Displacement and Land Issues
29. Paragraph
38 - The GoSL took the responsibility upon itself to provide relief to the
IDPs which was a result of the long conflict. Following the end of the conflict,
a 180-day Action program was designed to quickly address the basic
infrastructure with $3.2 billion at its disposal to take care of water,
sewerage, electricity, health and education sector with 900 schools now
functioning with over 260,000 students and close to 14,000 teachers. 300,000
people have so far benefitted from water supply in the Jaffna peninsula. Water supply and sanitation
alone has cost $164 million. Resettlement package consisting 6 months dry
rations, total shelter grant of Rs.25,000 per family, 40 perch land, non-food
relief items has been provided to IDPs.
30. Therefore,
it is inaccurate for the OHCHR to state in its Report that Sri Lanka “has no comprehensive
national policy on IDPs”. The resettlement process is comprehensive and the
Government policy in this regard is reflected in the progress made to date and
has been commended by the wider international community. The Ministry of
Resettlement functions under a clear policy on resettlement.
Reference
to Demilitarisation
31. Paragraph
47 - The contents of this paragraph negatively portrays the otherwise
positive role of the military. There is no institutionalisation of military
authority over civilian matters as claimed in the report. The military has no
involvement in civil administration in the North and East. The civil
administration system in the North and A/HRC/22/38/Add.1
East is fully functional with Government Officials at the
District, Divisional and grassroots levels being appointed and discharging
their functions.
32. The
military delivers development assistance as done in other parts of the country.
In a post-conflict situation, it is normal for the armed forces to be involved
in rebuilding the lives of civilians in the conflict affected areas in the
absence of effective civilian institutions. This should be viewed as a
temporary measure until the civilian institutions take over these functions.
While the military is involved in the development activities in the former
conflict areas, the capacity-building of the civilian institutions take place
in parallel. Sri Lankan military‟s assistance in the reconstruction and relief
efforts has been welcomed by the people in the area, since the military has
been effective in assisting these citizens. If it had not been for the military‟s
involvement, it would have been extremely difficult to provide critical
assistance required by the civilians, in the aftermath of the conflict.
Delivery of such assistance serves to win the hearts and minds of the
population traumatized of the conflict, and is also a confidence building
measure.
33. Paragraph
48 - It is the prerogative of the Government of Sri Lanka to establish
military zones in places the Government deems necessary, for valid security
reasons, and the GoSL rejects the claim of increasing militarisation of
civilian functions, as the civil administration has always been in the North,
even during the conflict.
34. With
regard to observations of OHCHR technical mission, the areas described are a
part of Civil Military Cooperation and is in no way intended to usurp the
powers of civil administration, and is similar to activities of other
militaries in the world.
35. Paragraph
49 - All acquisition of land has been done according to the prescribed
law and the Government has taken measures to pay compensation to the owners of
the property and provide alternate land to them. The claim that the military is
involved in economic activities is factually incorrect.
36. Paragraph
50 - The content of this paragraph is inaccurate. The members of the
general public are not required to give notice to local Army posts for
activities referred to in the paragraph. In order for national development
priorities to be implemented in an effective and coordinated manner, NGOs are
required to provide information to the Government on activities that they
intend to undertake. In addition, it is also important for purposes of
accountability for NGOs to provide information on their activities and source
funding. The need for NGOs to register with the NGO Secretariat is a
requirement under the relevant legislation in Sri Lanka, namely the Voluntary
Social Services Organisations (Registration & Supervision) Act No 31 of
1980 as amended by Act No 8 of 1998. The requirement for authorisation to
undertake activities and for disclosure of sources of funding is stipulated in
the relevant Acts and applicable for the whole country, and not restricted to
the North. The content of this paragraph convolutes this aspect.
37. Paragraph 51 - The
correlation between military presence and the points discussed in the paragraph
is ambiguous.
